Cape council rejects further discussion on residency brouhaha

While maintaining the legality of his actions, McClain agrees to seek housing within District 1

May 21, 2013

Facing possible ouster after his residency was called into question, Cape Coral City Councilman Marty McClain was more than willing to put his fate in the hands of his fellow council members and let the chips fall where they may.

They fell in his favor.

The council rejected a motion Monday to hold a special meeting to determine whether the District 1 representative should be investigated for a possible charter violation regarding that document's residency provision. The charter states council members must "reside" in the district they represent.

The vote was 6-2 against with Mayor John Sullivan, who made the motion, and Councilmember Chris Chulakes-Leetz, who made the second, voting in favor.

McClain, who has said he has maintained his legal residence in District 1 although personal issues and work have resulted in his staying elsewhere since late last year, assured everyone that he would physically move back into his district as soon as possible, no later than the end of the elected board's summer hiatus.

He also fired back at those he said were trying to divert the council's efforts from city business into an improper perusal of his personal life.

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"I feel I need an ankle bracelet. My private life is not on display for everyone. If I made a deal with city funds that helped me, that would be one thing," McClain said. "I make $290 a week doing this. I wanted to do this because I felt I could make a difference. This seat is bigger than me."

The last-minute add-on to the council agenda was moved to the forefront, where McClain stated his case. He said much of what he owns, as well as his residency documents, are listed on a house on Majestic Court, a property that is now for sale.

"I didn't think it would be an issue. The calls of support I've gotten have been overwhelming," McClain said. "Some have offered me rooms so I can stay in office," which he's rejected.

His position also has support from case law, McClain said, citing a legal opinion prepared by the City Attorney's Office that states legal residency is determined by intent and by public record documentation, not necessarily solely by where you sleep at night.

The debate centered around the city charter as it pertains to eligibility, qualifications and if necessary, the forfeiture of office if those qualifications are not met.

Chulakes-Leetz argued residency is a qualification, and that despite what McClain might believe, it wasn't about the who, but the what, to quote a Derrick Donnell line.

"The issue is whether the charter was violated. The charter says a councilmember shall forfeit his office if he lacks the qualifications for office. When I read that, I see forfeiture because of his actions taken," Chulakes-Leetz said. "I wish we weren't having this discussion."

Sullivan said the issue was transparency and made the motion for council to hold a special meeting to determine whether McClain should be charged with violating the charter.

"We have to move forward with it. Without having people testify under oath, we can't find intent," Chulakes-Leetz agreed.

Councilmember Kevin McGrail, though, said that if McClain said he would move back to District 1, that's all he needed to know to make a decision that was best for all parties involved, including the taxpayers.

"If we have an expensive hearing and bring in lawyers, we'll be here six months and spend hundreds of thousands of dollars to be where we're at now," McGrail said. "To clean up the language in the future, fine. The charter is a little dicey to me."

"The most difficult issue is that the charter isn't clear. We have to look at the verbage. It could be made clearer when we revisit the charter," said Councilmember Rana Erbrick.

Councilmember John Carioscia said based on the legal opinion received, McClain is legally a resident of District 1 because that's what his voter registration card states.

Chulakes-Leetz then asked "Is that the new benchmark?"

The controversy started last week after a media outlet was notified that McClain had not been living in the Majestic Court home since late last year.

McClain confirmed that he has been traveling extensively due to his job and that a personal matter had resulted in his staying elsewhere when in the Cape.